[1]               NAIT Students’ Association (the Students’ Association or NAITSA), applies for judicial review of the February 23, 2021 decision (the Decision) by the Board of Governors (the Board) of the Northern Alberta Institute of Technology (NAIT) setting 2021/22 tuition fees for domestic students, arguing that

[2]               NAIT is a polytechnic institution established under s 40 of the Act.  NAITSA is a student organization established under s 93 of the Act. The Board is a corporation established under s 43 of the Act and has the power and duty to manage and operate NAIT (s 60 of the Act).  The Board also has responsibility for setting tuition fees in accordance with the parameters set out in the Act and the Regulation.

[3]               The Board concedes that the Students’ Association has standing to bring this application and that the Decision is reviewable by the Court pursuant to its inherent supervisory powers over administrative decision makers.

[4]               For the reasons that follow, I conclude that the Decision setting tuition fee increases for the 2021/22 academic year was reasonable and complied with the Act and the Regulation.  However, I also conclude that the Board failed to engage in a meaningful consultation with the Students’ Association as required by procedural fairness and s 8 of the Regulation.  In this regard I conclude that the Board breached its duty of procedural fairness.   

[5]               Reasonableness is the presumptive standard of review: Canada (minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. Vavilov and Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Assn, 2022 SCC 30 describe six categories for which the presumptive standard of review is rebutted, thus requiring a correctness standard of review.  None of those six categories are engaged here.  Accordingly, the question is whether the Board’s decision setting the 2021/22 tuition fees was reasonable. 

[6]               In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. The court must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place: Vavilov at para 15.  See also Zarooben v The Workers’ Compensation Board, 2022 ABCA 50 at para 35 to 40.

[7]               Where, as here, no formal reasons have been provided, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable.  Without reasons, the analysis inevitably focuses on the outcome rather than the decision maker’s reasoning process.  This does not mean that the reasonableness review is any less robust in such circumstances, only that it takes a different shape: Vavilov at para 138.

[8]               In this case, the Students’ Association challenges the reasonableness of the Decision, in large part, based upon the interpretation of the relevant provisions of the Act and the Tuition Fees Regulation.  When conducing the reasonableness review, the court does not engage in a de novo analysis or determine the “correct” interpretation of the disputed provision.  Instead, the court must examine the decision as a whole, including any reasons provided by the decision maker and the outcome that was reached: Vavilov at para 116.  However, in the course of reviewing the disputed provision, it may sometimes become clear that the interplay of the text, context and purpose leaves room for a single interpretation of the disputed provision: Vavilov at para 124.  See also Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 at para 40.

[9]               The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible, and context-specific: Valvilov at para 77.  On issues relating to procedural fairness, a court must determine whether the decision under review was one which attracted a common law or a legislative duty of procedural fairness.  If so, the task of the court is to determine whether the requisite standard of procedural fairness was met: Byun v Alberta Dental Association and College, 2021 ABCA 272 at para 23; Zuk v Alberta Dental Association and College, 2020 ABCA 162 at para 13.  In that sense procedural fairness is reviewed for correctness: Vavilov at para 77.

[10]           As part of the process of setting the tuition fees for the 2021/22 year, the Board considered, and ultimately approved, two distinct changes that impacted tuition fees:

[11]           The most significant change to the tuition fee model was the removal of the tuition “cap” for full-time students.  To graduate from an academic program at NAIT, students are required to successfully complete a predetermined number of credits.  A fee is allocated for each credit and the student is required to pay tuition fees for the total number of credits taken in any given academic year. 

[12]           Some NAIT students attend full time, thus taking a full course load.  Other students attend NAIT on a part time basis and generally take less than a full course load.  Prior to 2021/22, full-time students and part-time students were notionally charged the same amount for each credit taken.  However, full-time students were eligible for a discount or a “cap” on their total tuition; that effectively meant that some or all full-time students paid less for completing an academic program at NAIT than part-time students.

[13]           In its written submissions, the Board provided an example to illustrate:

[14]           The Board submits that tuition fees under the former model had been structured to give full-time students an unequal benefit simply because they were able to attend on a full-time basis.  The Board further submits that this resulted in part-time students effectively subsidizing the tuition fees of full-time students.

[15]           The Decision modified the tuition fee model for the 2021/22 year so that both full-time and part-time students paid the same tuition to complete a program.  This was achieved by removing the full-time discount or “cap”. 

[16]           Despite removing the “cap” for full-time students, the modification of the tuition fee model was intended to be revenue neutral.  To achieve this neutrality, the fee per credit in some, but not all, programs was reduced. Thus, absent any overall tuition increase, the modified tuition model was expected to generate total tuition fee revenue in an amount virtually identical to the prior tuition model.

[17]           However, in addition to changing the tuition fee model, the Decision also approved an overall tuition fee increase. The Decision resulted in 2021-22 tuition fee revenue increasing from $47.791 million to $51.049 million, an increase of 6.82%.  This is very close to the target of 7% that the Board intended to achieve.

[18]           A report dated November 24, 2020 to the Finance Committee estimated that the combination of the removal of the “cap” along with the approximate 7% increase in tuition fees overall would have varying impacts on NAIT students.  The report explained:

[19]           However, the combined effect of the new tuition model and the overall tuition increase for 2021-22 resulted in students enrolled in some programs having notional tuition fee increases that exceeded 10%, in some cases far in excess of 10%.  To partially mitigate against the effects of such a significant increase, the Board, as part of the Decision, capped tuition fee increases for existing students in the 2021-22 year to 10%, no matter the program they were attending. Importantly, the 10% cap did not apply to new students.  As a result, many NAIT students attending for the first year of their program paid tuition fees for 2021-22 that were greater than the amount that would have been payable if a 10% increase had been applied to the tuition fees for the same program the year before. 

[20]           The Students’ Association submits that the Decision does not comply with the Act and the Regulation.  Their position is summarized in the Students’ Association Written Submissions as follows:

[21]           Under the Act, the Board of Governors has responsibility for setting tuition fees and, from time to time, to increase tuition fees.  However, when considering increases to tuition fees, the Board of Governors was required to engage in a consultation process with the Students’ Association.  This consultation is mandated by s 8 of the Regulation:

[22]           The Certified Record discloses numerous documents that emphasize the importance of consultation between the Board and the Students’ Association.  For example, NAITSA and NAIT entered into a Memorandum of Understanding (MOU) (Record at 80 – 83) and Addendum 1 to the MOU (Record at 84) that sets out a framework for consultation on issues including tuition fee models. 

[23]           NAIT also has policies dealing with student consultation (Record at 93-94) on issues that specifically include “matters that directly affect students” including “tuition and mandatory non-instruction fees”.

[24]           NAIT also has a written policy that is specifically directed toward consultation on tuition and mandatory non-instructional fees (Record at 135).  This policy specifically requires NAIT administration to provide student representatives with information about fee changes and the rationale for the changes.  This policy also mandates that “information and opinions from the student representatives will be relayed to the NAIT Executive Committee for their consideration in setting the fees”.  However, the policy also makes it clear that the final decision in relation to tuition fee increases resides with the Board.

[25]           The Students’ Association, noting that the duty of fairness is separate from the express statutory requirement for consultation, argue that the s. 8 requirements inform the content of the duty to be fair.

[26]           The Supreme Court of Canada in Baker set out the factors to consider when determining the contents of the duty to be fair in each case; these factors include (at paras 22-28);

[27]           The Students’ Association asserts that all these factors weigh in favour of high degree of fairness. It argues that because the Board is exercising a broad discretion intended to be in the public interest, there is a need for greater judicial oversight to prevent arbitrary decision making. Further, the Act sets out the objectives of accessibility, predictability, and accountability for post-secondary educational institutions, and it creates a comprehensive scheme for providing post-secondary education that includes student participation in governance through student organizations.

[28]           Next, the Students’ Association argues it had legitimate expectations that there would be meaningful consultation based on provisions in the MOU between NAIT and NAITSA, and the NAIT published policies. Moreover, the Students’ Association argues that the Decision is important to its members as affecting their ability to earn a livelihood by pursuing post-secondary education.

[29]           The Students’ Association submits that the Board failed in its duty to consult regarding the Decision and, as a result, there was an absence of procedural fairness.

[30]           The Students’ Association submits that the duty of consultation imposed by s 8 of the Regulations requires the Board to engage in a meaningful consultation and that the measures taken to attempt satisfy that obligation fell far short of what is required.

[31]           In particular, the Students’ Association relies on the Alberta Court of Appeal decision in Lakeland College Faculty Association v Lakeland College, 1998 ABCA 221. There, the Court considered the meaning of the word “consultation”.  At paras 37-38, Justice Picard, writing for a unanimous court said:

[32]           The Board acknowledges that increases in tuition fees are the subject of consultations with students.  However, it also submits that s 8 of the Regulation “covers the field” in relation to the nature and scope of the consultation and that the consultation need not be any broader than that prescribed by s 8(2), nor does any common law duty of consultation arise in this case.  The argument is more fully explained in its Written Submission at para 50 to 51:

[33]           Therefore, the Board submits that once the specific requirements of s 8(2) have been satisfied, the duty to consult has been met and nothing further is required.  Furthermore, the Board submits that the comments of the Court of Appeal in Lakeland College are not applicable in relation to the s 8 consultation requirement.  This is because Lakeland College described consultation in the context of a collective agreement in circumstances where the board of the educational institution exercised an adjudicative function in relation to a specific employee. The Board notes that the circumstances of the consultation required by s 8 are much different.

[34]           The Board submits that it fulfilled its obligation to consult.

[35]           I conclude that it is not appropriate to interpret the s 8 consultation requirement in the very narrow fashion suggested by the Board.  To the contrary, the words of s 8(2) refute this interpretation. It is not correct to say that s 8(2) defines the full scope of the consultation required by s 8(1) or that it “covers the field”.  Nothing in the Regulation defines “consultation”. Instead, s 8(2) simply identifies two specific criteria that the consultation must include: (1) an outline of the process and (2) at least two meetings.  Those two criteria are necessary, but they are not sufficient to satisfy the obligation to consult. 

[36]           I find that the Baker factors here include a duty to consult with the Students’ Association, and in particular that the nature of the question, its importance to the students, and the students’ legitimate expectations based on the MOU, the policies and the Regulation, all require the Board to consult with the Student Association about changes to tuition fees and tuition structure. That duty of consultation must be meaningful, although it does not include the ability to veto the Decision.  I further conclude that the duty to consult as a matter of common law under Baker can be best addressed within the interpretation of s 8 of the Regulation.

[37]           Section 8 requires that the Board establish a mechanism for holding “consultations” with students regarding tuition fee increases.  The term “consultation” is widely used and well understood.  Lakeland College provides a detailed description of the term but, as Justice Piccard explained, the meaning of consultation is “as much founded in common sense as in dictionaries or learned judicial writings”. 

[38]           Furthermore, the guidance provided by the Court of Appeal in Lakeland College regarding the meaning of “consultation” is not restricted to labour law applications, as submitted by the Board.  Justice Piccard explained, as part of her analysis, that she had considered judicial interpretations of the term in “various different contexts, in legislation and in contracts.”  Thus, I conclude that the guidance provided by the Court of Appeal in Lakeland College regarding the meaning of “consultation” is of general application and is applicable in the interpretation of s 8 of the Regulation.

[39]           Moreover, the narrow interpretation proposed by the Board is refuted by policies that were implemented to attempt to comply with the Act and the Regulation.  The NAIT/NAITSA Framework describes the consultation requirements, including the requirements regarding tuition fees.  The portion of the document that describes the Consultation Principles (Record 140) makes it clear that NAIT will:

[40]           The portion of the Framework that describes “Consultation Principles” (Record 141) describes the process as including:

[41]           The “Policies & Guidelines” regarding “Tuition & Mandatory Non-Instructional Fees” (Record 135 and 145) also provides insight into the nature of the consultation that is required.  The parameters of the program require at least two meetings of the Consultation Committee to discuss tuition fees, which aligns with the requirement in s 8 of the Regulation.  This policy document also contains the following parameters:

[42]           These NAIT policy documents are consistent with the obligations imposed by s 8(2) of the Regulation and with an obligation to consult which is not narrow in scope.  The policy documents recognize that NAIT students, as represented by the Students’ Association, are important stakeholders and any decisions regarding tuition fee increases would be expected to have a major impact on them, thus necessitating a bilateral interaction by the parties informed of each other’s positions where each has the opportunity to give and receive information. This is also completely consistent with the guidance provided by the Court of Appeal in Lakeland College.

[43]           I conclude that the obligation to consult imposed by s 8 of the Regulation required the Board to engage in a meaningful exchange of information and views regarding tuition fee increases.  That obligation informs the obligation to consult as an element of procedural fairness. Those obligations, considered together, required the Board to give more than “lip service” to the obligation to consult.

[44]           The certified record demonstrates that the Board, thought their delegate, arranged for at least two consultation meetings with the Students’ Association regarding the 2021-22 tuition fee increases.  The certified record also reflects other communications between the parties leading to the Decision.  Despite this, I conclude that these meetings and the other communications did not satisfy the obligation to consult mandated by s 8 of the Regulation or the duty of procedural fairness.  I come to this conclusion based on a review of the totality of the certified record and for the following reasons.

[45]           The certified record reveals that Carole LaPlante, Associate Vice President, Finance and Corporate Services was delegated responsibility to coordinate the consultation process with the Students’ Association.  She was the primary contact between the Students’ Association and the Board leading to the Decision.

[46]           The consultation process began on January 30, 2020, more that one year before the Decision.  At that time, the delegates of the Board provided input regarding tuition fee increases for the three academic years beginning 2021-22.  The minutes of the meeting record the following:

[47]           This was an early and generic statement of position made before finalizing the proposed tuition fee increases for 2021-22.  It proved to be an incorrect statement because the Decision ultimately saw tuition fee increases far greater than 10% for some programs, at least for new students.

[48]           Several months later, on November 12, 2020, a consultation meeting took place between representatives of NAIT, including Ms. LaPlante, and representatives of the Students’ Association.  In advance of that meeting Ms. LaPlante consulted with representatives of the Ministry of Advanced Education (the Ministry) and provided detailed information about the proposed change to the tuition fee model.  By email dated November 3, 2020, Ms. LaPlante asked the Ministry to confirm that the proposed changes and the tuition fee increase complied with the Regulation.  By email dated November 12, 2020 (approximately 4.5 hours before the consultation meeting with the Students’ Association), the Ministry responded, in part, as follows:

[49]           In this same email, the Ministry also suggested that compliance with the Regulation could be achieved if the then current students were grandfathered so that their tuition increases did not exceed 10%. 

[50]           As I will explain later in these reasons, s 4(1) of the Regulation provides for a 10% “Additional Cap” on increases in tuition fees to be paid in respect of an approved program.  Thus, immediately before going into the consultation with the Students’ Association, Ms. LaPlante was aware the Ministry took the position that s 4 of the Regulation was applicable in relation to the proposed increased tuition fees for 2021-22.  It is apparent that the Ministry’s position in relation to s 4 was different than that of Ms. LaPlante because the first draft of the tuition model submitted to the Ministry was developed without regard to the restriction contained in s 4 of the Regulation.  More specifically, the first draft of the new tuition fee model provided for increases in tuition fees for both existing and new students in some (but not all) programs greater than 10%. 

[51]           On this application the Board submits that s 4 of the Regulation has no application in relation to the 2021-22 year.  This appears to be the same position that Ms. Laplante took when the first draft of the new tuition fee model was sent to the Ministry in November 2020.

[52]           There is no evidence on the record as to what steps, if any, Ms. LaPlante took with the Ministry to resolve the differing views regarding applicability of s 4(1) of the Regulation. There is no evidence that Ms. LaPlante challenged the Ministry regarding the position it had taken in relation to the applicability of s 4(1).  Nor it there any evidence that Mr. LaPlante asked the Ministry why, in its view s 4(1) was applicable to the 2021-22 year.

[53]           The November 12, 2020 consultation meeting with the Students’ Association then took just hours after the Ministry’s November 12 email.  The minutes from the consultation meeting show that it was conducted by Microsoft TEAMS and that it was one hour in length.  The minutes describe the results of the consultation in the following way:

[54]           The record does not reflect precisely what tuition recommendation Ms. LaPlante was describing at the consultation meeting.  It is unlikely she was referring to the recommendation that had been sent to the Ministry with her email dated November 3, 2020 because this had been rejected by the Ministry.  It is possible that the recommendation she described was one that grandfathered existing students, which the Ministry suggested it might accept.  I consider this unlikely because Ms. LaPlante had received the Ministry’s position only a few hours before the consultation meeting.  It is more likely, and I conclude, that Ms. LaPlante was simply describing in a general way the broad outline of the revised model with an assurance that when the recommendation was finalized it would comply with the Regulation.

[55]           It is clear, and I conclude, that following the November 12, 2020 consultation meeting, the Students’ Association had no detailed information regarding the proposed 2021-22 tuition fee increase.  They did have general information regarding a change to the tuition model and an explanation that an overall 7% tuition fee increase would be recommended to the Board.

[56]           The record reflects that on November 15, 2020, three days after the consultation meeting with the Students’ Association, Ms. LaPlante and one of her associates, Nadim Merali, met with a representative of the Ministry to discuss “NAIT’s New Per-Credit Rates for 2021-22”.  By email dated November 16, 2020, NAIT sent the Ministry additional charts that provided detailed information regarding the revised model which capped the tuition fee increases for existing students at 10% but did not impose a similar restriction for new students.

[57]           I conclude that the updated model provided to the Ministry on November 16, 2020 was submitted to avoid the need to challenge the Ministry’s November 12, 2020 position regarding the applicability of s. 4 of the Regulation.

[58]           On November 23, 2020, one week after sending the additional charts showing the 10% cap for tuition increases for continuing students, Ms. LaPlante sent an email to the Ministry:

[59]           Within three minutes of receiving this email, the Ministry responded by confirming that they had no concerns with “your revised approach to your tuition structure”. 

[60]           On November 24, 2020, one day after receiving approval from the Ministry, the Finance Committee met to discuss the revised tuition model.  I conclude that once the approval of the revised tuition model was received from the Ministry, the recommendations regarding the 2021-22 revised tuition model and tuition fee increase were crystalized.  This was the recommendation that was ultimately approved the Board on February 23, 2021, thus giving rise to the Decision. 

[61]           Even though the recommendation crystalized in late November 2020, no additional information was provided to the Students’ Association until the second consultation meeting which took place more than two months later on January 28, 2021.  The minutes from that meeting disclose that it took place by Microsoft TEAMS and lasted approximately one hour.  For all practical purposes, the minutes of this consultation meeting are identical to the minutes from the November 12, 2020 consultation meeting.  The minutes disclose nothing more than that a recommendation for a new tuition model along with an overall 7% tuition increase was being proposed.  The minutes also record that the students had “no questions or comments”. The only action item arising from the meeting was that:

[62]           This action item resulted in the Students’ Association receiving a document entitled “Domestic Tuition Rate per Credit 2021-22” late in the day on January 28, 2021.

[63]           Despite not having any questions at the consultation meeting, the Students’ Association did have concerns arising from the information that was circulated following the meeting.  On January 29, 2021, the very next day following the consultation meeting, the Students’ Association sent an email to Ms. LaPlante.  The email was an invitation to a TEAMS meeting to be held on February 2, 2021.  The email also said:

[64]           Later in the day on January 29, 2021, the Students’ Association sent a further email to Ms. LaPlante providing the data that they had used in completing the calculations referred to in the earlier email. The Students’ Association also noted that they had previously requested NAIT’s analysis and sought additional data to permit them to “understand the new structure”.

[65]           The issues raised by the Students’ Association in its communications to Ms. LaPlante on January 29, 2021 were completely legitimate. A meaningful response to those issues was required to permit the Students’ Association to fully understand the position that was to be put forward to the Board. 

[66]           Ms. LaPlante responded to the Students’ Association late on Friday January 29, 2021 saying:

[67]           The response provided by Ms. LaPlante was a technically accurate description of the new tuition model and accompanying tuition fee increase, but it was vague and did not, in a transparent way, disclose that for new students in some programs, tuition fees would be more than 10% higher than the tuition fees charged for the same program in the immediately preceding year.  Furthermore, Ms. LaPlante did not provide the data that the Students’ Association had requested to permit them to fully understand the proposed changes.

[68]           Despite not having received any data from Ms. LaPlante, the Students’ Association continued to prepare calculations based on publicly available information.  These calculations were shared in an email to Ms. LaPlante which was sent approximately 2 hours before the scheduled February 2, 2021 TEAMS meeting.  The Students’ Association’s email concluded:

[69]           The February 2, 2021 TEAMS meeting proceeded.  There are no minutes from this meeting, but the results are summarized in Ms. LaPlante’s February 2, 2021 email in which she thanked the Students’ Association for “allowing us to walk through the calculations as they were very complex”.  Importantly, for the very first time, Ms. LaPlante attached to her email a copy of “the analysis we have prepared to detail the new changes and confirm the compliance with the Tuition Fee Regulations.”  Ms. LaPlante concluded her email with the following:

[70]           The Students’ Association did reach out to Ms. LaPlante in an email dated February 5, 2021.  That email was sent at 1:02 pm and says in part:

[71]           Ms. LaPlante did not immediately respond to the legitimate question posed by the Students’ Association.  However, shortly after receiving the February 5, 2021 email from the Students’ Association, she communicated with the Ministry to alert them to the Students’ Association’ position, saying:

[72]           Ms. LaPlante did not respond to the Students’ Association until February 8, 2021.  In that response Ms. LaPlante explained that she had engaged with the Ministry and asserted her position that the new tuition model “remains compliant with the Tuition Fee regulations …”.  She also asserted that it was in compliance with the provincial tuition framework.  These responses were conclusory.  She did not explain why the new model was compliant with the  Regulation.  She did not explain whether she believed that s 4(1) of the Regulation (which imposed the 10% cap) was inapplicable for the 2021-22 year.  She did not explain whether, if it was applicable (as the Ministry seemed to think in November 2020), why it applied only to continuing students and not to new students.  I conclude that the response was dismissive to a legitimate question.  The response was a non-response.

[73]           There was no further communication between the Students’ Association and Ms. LaPlante regarding these issues.

[74]           In her report to the Finance Committee for its February 9, 2021 meeting, Ms. LaPlante recommended the new tuition model in conjunction with a 7% increase in tuition fees.  As part of the report Ms. LaPlante explained that the Students’ Association had been consulted and that they supported moving to the new model.  It is obvious that this report was submitted before early February 2021 when the Students’ Association indicated that they could not support the proposal.  However, at the Finance Committee meeting Ms. LaPlante explained that “The Student’ (sic) Association has recently raised a concern that new students may be paying a higher than 10% increase.”

[75]           On February 9, 2021 the Finance Committee passed a resolution that it would recommend the proposal to the Board.  This proposal was presented to the Board and was approved on February 23, 2021, leading to the Decision.

[76]           I conclude that the Students’ Association did not get any meaningful data from Ms. LaPlante until after that January 28, 2021 consultation meeting.  It was only on February 2, 2021 when Ms. LaPlante provided the analysis that the Students’ Association was able to understand the impacts of the model change.  When the Students’ Association expressed concerns that the revised model did not comply with the Regulation, they received no meaningful response.  Instead, they received a conclusory statement from Ms. LaPlante with no explanation for her position.

[77]           This chronology makes it clear there was no meaningful consultation undertaken in relation to the change to the tuition model.  The consultation did not comply with the Board’s obligations under s 8 of the Regulation.  Nor did it comply with the policies that had been put in place to attempt to ensure compliance with the obligation under s 8 of the Regulation. The process was far removed from what Lakeland College defined as a consultation - a bilateral interaction by the parties informed of each other’s positions where each has the opportunity to give and receive information.

[78]           I conclude that the failure to comply denied the Students’ Association the opportunity to fully understand the position of the Board and, more importantly denied the Students’ Association the opportunity to meaningfully respond to the positions taken by the delegate of the Board. 

[79]           The Students’ Association did not have a veto on the decision relating to tuition fees.  However, it did have the right to be consulted so that their views could be considered by the decision maker.  I conclude that the failure to consult denied the Students’ Association the opportunity to be heard in a meaningful way and resulted in a breach of procedural fairness.

[80]           The Board of Governors is mandated by s 61(1)(a) of the Act to set the tuition fees.  While the Board has a discretion in setting tuition fees, the discretion is not unlimited.  Instead, the discretion must be exercised subject to the constraints imposed by the s 61 of Act and the Regulation.  This statutory scheme is the most salient aspect of the legal context relevant to the Decision: Vavilov at para 108.

[81]           In Vavilov, the Supreme Court of Canada noted that matters of statutory interpretation are to be evaluated on a reasonableness standard (at para 115), and cautioned that when reasonableness is the applicable standard, the reviewing court is not to conduct its own de novo analysis or ask itself what the correct decision would have been (at para 116).  Moreover, courts approach statutory interpretation by applying the modern principle as set out in Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27:

[82]           However, administrative decision-makers are “not required to engage in a formalistic statutory interpretation exercise in every case.” (Vavilov at para 119). The Court then noted (at para 120-121):

[83]           The Court finally noted that in the course of reviewing an administrative decision-makers statutory interpretation, a Court may find that there this is only a single reasonable interpretation of the provision in question (Vavilov at para 124, Dunsmuir at para 72-76).

[84]           Where the words of a statutory provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretative process:  Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10.  Despite this, the Supreme Court has repeatedly emphasized the important role that context must inevitably play when a court construes the written words of a statute.  For example, in ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board), 2006 SCC 4 at para 48, the Court stressed that a court must consider the total context of the provision to be interpreted “no matter how plain the disposition may seem upon initial reading”.

[85]           The Alberta Court of Appeal in Alberta v ENMAX Energy Corporation, 2018 ABCA 147, again emphasized the importance of context in statutory interpretation and, specifically, the need to consider the purpose of the statutory provision in the context of the legislative scheme.  The Court explained (at para 70):

[86]           In Geophysical Service Incorporated v EnCana, 2017 ABCA 125, the Court of Appeal also emphasized the importance of giving effect to Parliament’s intention. The Court explained that a strict grammatical construction need not be adhered to where it does not give effect to Parliament’s intention in enacting legislation (at para 79), citing Pierre-André Côté, The Interpretation of Legislation in Canada, 4^th ed (Toronto: Thomson Reuters Ltd, 2011), at page 324. 

[87]           As a result, the modern approach to statutory interpretation rejects the notion that statutory interpretation requires nothing more than a strict grammatical construction of the words of the statutory provision, but it still requires that the words of the provision be read in its grammatical and ordinary sense: Rizzo at para 21.  Therefore, the express words used in the statutory provision under consideration remains both the starting point for the exercise of statutory interpretation and the focal point of the analysis: Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para 195.

[88]           It is important to note that the constraints that the Board faced in relation to tuition fee increases changed twice within a ten-month period between February 1, 2019 and December 5, 2019.  The changes may possibly be explained by the change of Government in Alberta in April 2019.

[89]           The first of these significant changes occurred when An Act to Improve the Affordability and Accessibility of Post-Secondary Education, SA 2019 c-19 (the February 2019 Amendment Act) came into force on February 1, 2019.  That legislation repealed the then existing s 61 of the Act and replaced it with a new provision that contained s 61(3) which mandated that average tuition fee increases for domestic students were restricted to inflationary increases tied to the All-items Consumer Price Index for Alberta published by Statistics Canada (Alberta CPI).  Also on February 1, 2019, the Regulation, came into force and repealed the earlier Tuition Fees Regulation (AR 273/2006).  Effective February 1, 2019, the Regulation contained s 4(1) restricting tuition increases in any program to 10% of the tuition fees that had been payable in the most recent year in which the program was last offered.

[90]           The second major change affecting the Board’s discretion occurred on December 5, 2019, when the Ensuring Fiscal Sustainability Act, SA 2019, c 18 was assented to.  Section 12 of that legislation amended the Act to include 61(3.1) which suspended the operation of s 61(3) for a three-year period, thus permitting average tuition increases at levels higher than Alberta CPI.  Also on December 5, 2019, the Regulation was amended to add s 11.1 which restricted average tuition fee increases across all domestic students to 7%.

[91]           At the heart of the dispute between the Students’ Association and the Board is whether the Decision violates the Act and the Regulation because it resulted in tuition fee increases for some new NAIT students in amounts greater than 10% of the fees charged for that same program in the prior year. 

[92]           A 10% “Additional Cap Fee” is a constraint imposed by s 4(1) of the Regulation, which had come into force on February 1, 2019 and which provides as follows:

[93]           The fundamental issue is whether s 4(1) of the Regulation has any application in respect of tuition fees increases for the 2021-22 year.

[94]           The Board submits that s 4(1) of the Regulation does not apply to tuition fee increases for the year 2021-22 because, by its express terms, s 4(1) relates only to circumstances where an Alberta CPI increase is sought through the application of s 61(3) of the Act.  Since the operation of s 61(3) was suspended for three years by s 61(3.1), the Board submits that s 4(1) of the Regulation is inapplicable for the year 2021-22.  For this reason, the Board submits that it was not restricted to a maximum 10% cap on tuition increases at a program level for the 2021-22 year.  Instead, the Board submits that the constraint on its discretion to increase tuition fees for 2021-22 is found in s 11.1 of the Regulation which limits the average tuition increases for all individual domestic students across all programs to 7%.  The Board submits that the Decision complies with s 11.1 of the Regulation and was therefore reasonable. 

[95]           The Students’ Association submits that tuition fee increases were constrained by the operation both s 4(1) and s 11.1 of the Regulation.  This is said to create a two-cap system which arises because when the Act was amended to add s 61(3.1) and the Regulation was amended to include s 11.1, the Legislature did not repeal either s 61(3) of the Act or s 4(1) of the Regulation. For this reason, the Students’ Association submits that s 4(1) continues to be in force and is directly applicable to tuition increases in 2021-22.  The Students’ Association submits that the Decision is non-compliant with s 4(1) of the Regulation and is therefore unreasonable.

[96]           During the 10-month period between February 1, 2019 and December 5, 2019, the Board’s discretion to increase tuition fees was constrained by s 61(3) of the Act and s 4(1) of the Regulation.  Those two constraints operated together to create a system whereby the overall average tuition fee increases were restricted to Alberta CPI (s 61(3) of the Act) and that, on a program level, the maximum increase in any program was 10% (s 4(1) of the Regulation).  These are two integrated provisions that must be read together.  This is made clear by the express wording of s 4(1) which says that it is applicable when a board is increasing tuition fees “under s 61(3)(a) of the Act”. 

[97]           The purpose and objective of the Act and the Regulation can be seen from the February 2019 Amendment Act which, by s 2, repealed the preamble to the Act and substituted a new preamble which emphasised a commitment to providing Albertans with a high-quality post-secondary education system that is “accessible, affordable, high quality, accountable and coordinated”. The preamble is intended to assist in explaining the enactment: Interpretation Act, RSA 2000, c I-8, s 12. 

[98]           From the perspective of both current and prospective NAIT students, s 61(3) of the Act and s 4(1) of the Regulation created an environment that met these objectives.  Students entering into a NAIT program were aware that average tuition fee increases would be restricted to Alberta CPI, but that the possibility remained that tuition fees for any particular program could be increased by a maximum of 10%.  From the perspective of NAIT, these provisions created accountability and certainty as to what tuition fee revenues would be forthcoming in the future, thus permitting NAIT to be “effectively governed, financially sustainable, fiscally responsible and collaborative with their communities, government and [other post-secondary institutions]”.

[99]           The Students’ Association submits that the combination of the provisions of s 61(3) of the Act and s 4(1) of the Regulation require that the Board set tuition fees in a way so that there are no “inequitable increases” in tuition fees.  The Students’ Association submits that these two provisions constrain the way in which the Board can adjust tuition fees for certain programs.  This position is articulated in the Students’ Association Written Argument:

[100]      There is simply no support for this argument on the basis of the record.  To the contrary, the Board was given the discretion in s 61(1) to set tuition fees.  That discretion is constrained by the requirement in s 61(2) that the tuition fees be “set in accordance with this section and the regulations”.  Nowhere in s 61 or in the Regulation is there any provision that restricts the Board from applying different tuition increases, or decreases, for different NAIT programs.  The discretion provided by s 61 permits the Board to make important policy decisions and permits tuition fees to be set in whatever manner that it considers will best serve the institution and its stakeholders, including students and future students. It permits the Board to adjust tuition for various programs to meet the costs of delivering those programs or to achieve other strategic priorities.  The discretion to make these types of decisions meets the objectives articulated in the preamble to the Act to ensure that NAIT is “effectively governed, financially sustainable, fiscally responsible”.

[101]      I conclude that the combination of s 61(3) of the Act and s 4(1) of the Tuition Fees Regulation makes it clear that the Legislature intended to address average tuition increases for all students separately from tuition increases for individual programs.  The Legislature chose not to constrain the Board from increasing tuition for different programs at different rates, provided that the tuition increases satisfied the constraints found in both s 61(3) of the Act and s 4(1) of the Regulation. Thus, the Board had the discretion to increase tuition for a particular program or programs while at the same time imposing lesser tuition increases, or alternatively, tuition freezes or reductions in tuition to other programs.  These decisions are important to the ongoing viability of the institution and important to the stakeholders, including the students and future students. 

[102]      In almost all cases, the Legislature has the authority to modify or change legislative provisions in a manner that it determines is appropriate.  Such a change came to post-secondary institutions on December 5, 2019.

[103]      The December 5, 2019 changes to the Act and the Regulation modified the constraints on the Board in relation to tuition fee increases in two material ways:

[104]      The Minister sponsoring the legislative changes in late 2019, Minister Toews, when speaking to the amendments in the Legislature on October 29, 2019 said:

[105]      I conclude that by enacting the December 5, 2019 provisions, the Legislature intended that there be a three-year period during which post-secondary institutions could reset their tuition structures and raise tuition fees beyond the rate of inflation.  The Students’ Association submits, and I accept, that the Alberta CPI for the 2021-22 year was 1.42%.  As a result, for that year s 11.1 of the Regulation permitted tuition increases at approximately 5 times the Alberta CPI.  In doing so the Legislature intended to permit post-secondary institutions to generate higher revenues from tuition and “reduce their dependency on government funding”. For NAIT, the December 5, 2019 changes permitted tuition revenue from domestic students to increase from $47.79 million to $51.05 million, an increase of $3.26 million in the 2021-22 year.

[106]      The Legislature’s intention was clear that these changes would only be temporary.  For this reason, the December 2019 Legislative changes did not repeal s 61(3), but instead made the operation of that section inapplicable for a 3-year period, including for the 2021-22 year.  Similarly, s 4(1) of the Regulation was not repealed.  Thus, once the three-year period ended, the former provisions would again become applicable, and the Alberta CPI tuition increase cap would be re-instated.

[107]      Nor did the December 5, 2019 legislative changes modify the preamble to the Act.  Thus, despite the December 2019 changes, it is apparent that the Legislature continued to intend post-secondary education be “accessible, affordable, high quality, accountable and coordinated”.  Those general objectives must be considered within the context of the temporary changes intended to “reduce ... dependency on government funding and mitigate the impacts of funding reductions”.  In this respect the objectives that were made clear by the February 2019 Amendment Act were modified for the three-year period including the 2021-22 year.

[108]      It is in this context that s 61(3) and s 61(3.1) of the Act and s 4(1) and s. 11.1 of the Regulation must be interpreted.

[109]      I conclude that s 4(1) of the Regulation has no application and did not constrain the Board regarding the setting of tuition fees for the 2021-22 year.  I come to this conclusion because, as I explained earlier, the constraint in s 4(1) is directly tied to setting tuition fee increases based on the Alberta CPI in the manner described in s 61(3).  This is made clear from the opening words of s 4(1):

[110]      Thus, it is apparent that the constraint in s 4(1) has application only where the Board sought the Alberta CPI increase described in s 61(3)(a). The Decision for the year 2021-22 was not a tuition increase “under section 61(3)(a) of the Act”.  It could not have been because s 61(3.1) specifically makes s 61(3) inapplicable for that year.  Instead, the Decision imposed the tuition fee increase under s 11.1 of the Regulation. 

[111]      As a result, I conclude that the operation of s 61(3) and s 4(1) was suspended for the three-year period ending in 2022-23, and further that this suspension did not violate the objectives set out in the preamble to the Act.  The objectives continue to be met even though post-secondary institutions were permitted a three-year window to reset their tuition structures.  This is because once the three-year period ended, the constraints on tuition increases would revert to those first implemented on February 1, 2019 and thus future tuition increases would be restricted to Alberta CPI.

[112]      In coming to this conclusion, I have considered the Ministry’s position in its November 12, 2020 email to Ms. LaPlante.  That email advised that the Ministry had reached a “decision that increases at the program level beyond 10% would be a violation of section 4 of the Tuition and Fees Regulation”.  This suggests the Ministry believed that s 4(1) applied in the year 2021-22. The Ministry also suggested that NAIT could comply with s 4(1) if it limited tuition fee increases for existing students to 10%. This suggestion implies that new students could be charged tuition fees at rates higher than 10% of the rates charged for the same program in the year earlier.  The Ministry did not provide any rational for its position and the record does not disclose any attempt by the delegate of the Board to challenge the Ministry’s position. 

[113]      I conclude that s 4(1) simply does not permit the interpretation put forward by the Ministry.  The Ministry is not a party to this application and therefore made no submissions regarding this position.  I can see no logical or rational basis to support the Ministry’s position that s 4 applied in 2021-22.  Moreover, even if s 4(1) was applicable (which it is not), the suggestion that s 4(1) applies only to continuing students, but not to new students, is similarly not supportable, because s 4(1) does not address tuition increases for individual students, whether continuing students or new students.  Instead, the restriction contained in s 4(1) applies to tuition fees on a program basis. 

[114]      Even though the 10% limit on program increases in s 4(1) did not apply to the 2021-22 year, the Decision restricts tuition increases for continuing students to 10% notwithstanding that tuition fees increases for some programs exceeded 10%.  The Board was not required to, and did not, provide reasons for the Decision.  It is possible that the Board simply accepted the Ministry’s position.  The Students’ Association argues that if this was the rationale for the Decision, then the Board fettered its discretion, rendering the Decision unreasonable.

[115]      Alternatively, as the Board now argues, limiting tuition increases to 10% for existing students was simply a concession that was given out of a concern for fairness.  If this was the true rationale for the Decision, then the Board would not have fettered its discretion.

[116]      Because no reasons for the Decision were given, it is challenging to precisely determine the rationale and justification for the 10% cap for existing students.  In these circumstances the Decision must be examined in light of the relevant constraints on the decision maker. The court’s analysis must necessarily focus on the outcome rather than on the decision maker’s reasoning process.  This does not make the reasonableness review less robust, but it does take on a different shape (Vavilov at para 137 – 138).  The review will include an assessment as to whether the Decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Vavilov at para 86).

[117]      For the reasons given earlier, the only constraint on tuition fee increases was imposed by s 11.1 of the Regulation.  This constrained average tuition fee increases across all domestic students to 7%.  The record discloses the Decision did not violate this provision.

[118]      The Board could have instituted the new tuition fee model and implemented the 7% average fee increase, without restricting tuition increases for existing students to 10%.  However, the Board had broad discretion when setting tuition fees and was entitled to put caps on tuition as it considered appropriate. This is exactly what the prior tuition model did for full time students.  Similarly, the Board had the discretion to limit the increases for continuing students to 10% as part of the transition to the new fee structure.

[119]      I am satisfied that a proper interpretation of the Act and the Regulation requires a conclusion that s 4(1) did not constrain the Board and as a result, on a program level, tuition increases of more than 10% were permissible in 2021-22.  I am satisfied that the Board also had the discretion to limit the tuition fees for all continuing students to 10%.  The Decision was within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.  Moreover, I conclude that in coming to the Decision, the Board did not fetter its discretion by consulting with the Ministry.

[120]      Since s 4(1) of the Regulation has no application for the year ended 2021-22, I conclude that the Decision properly complies with the requirements of s 61 of the Act and the Tuition Fees Regulation. 

[121]      The Decision imposed tuition fee increases that were compliant with the constraints imposed by s 61 of the Act and with the s 11.1 of the Regulation.  In this respect the Decision was reasonable.

[122]      However, the process leading to the Decision resulted in a breach of procedural fairness because the Board failed to engage in a meaningful consultation with the Students’ Association as required by procedural fairness and s 8 of the Regulation.  In these circumstances, I grant a declaration that that there was a breach of procedural fairness leading to the Decision.

[123]      It is necessary to consider what, if any, further remedy is appropriate in relation to the issue of the breach of procedural fairness.  If the parties are unable to reach an agreement on this issue, or on the issue of costs, they may provide additional written submissions within 60 days from the release of this decision.